Barnes v. Stanley

BARCLAY, J. This is a controversy in regard to tbe possession of certain personal property formerly belonging to the partnership of Stanley & Maynard, composed of Messrs. James H. Stanley and Albert Maynard. The former died, February 11, 1901. Mr. Maynard at first proceeded toward liquidating the affairs' of the firm without formal administration. February 22, 1901, Mr. Seth S. Barnes as plaintiff brought a suit by attachment against the firm (naming both partners as defendants) on a demand for $329.17 for goods sold and delivered, charging fraudulent conveying and concealing of assets., etc. Under the attachment writ a considerable amount of miscellaneous personal property, including a sawmill, engine and machinery, lumber, mules, etc., was seized by the sheriff of New Madrid county. Thereupon the widow of Mr. Stanley, and Mr. Maynard, renounced their rights to administer and Mr. LaFont was appointed by the probate court of the county to be administrator of the partnership estate of Stanley & Maynard, February 28, 1901. He was also appointed by the same court administrator of the individual estate of • Mr. Stanley. He qualified at once by giving the required securities in each capacity. Mr. LaFont then filed an interplea in the Barnes attachment suit, claiming possession of the attached [692] property as administrator of the partnership estate of Stanley & Maynard, reciting his appointment and qualification as administrator of said partnership estate, that the property attached (which was duly described) belonged to said estate, that he had demanded unsuccessfully the return of the property for which he prayed judgment, etc. The substance of plaintiff’s answer to the interplea is as follows: “1. That he denied each and every allegation therein contained. “2. That he prays judgment as in the original petition filed herein.” A trial took place before the learned circuit judge, a jury having been waived. After hearing the evidence which disclosed the foregoing facts, the court found in favor of the interplea and adjudged that the-attached property be delivered to the interpleader. Then followed this appeal after the original plaintiff had moved for a new trial without success and had duly saved his exceptions. 1. It has been held competent for a surviving-partner in Missouri to take certain steps toward paying off debts and collecting assets of the firm, without giving the bond required by section 56 (R. S. 1899). Bredow v. Sav. Instn., 28 Mo. 181; Crook v. Tull, 111 Mo. 283. But it has been further held, by a divided court, that he may not assign the entire property of the firm so as to deprive the probate court of its jurisdiction over the partnership property. State ex rel. Richardson v. Withrow, 141 Mo. 69. In the last case were approved several decisions construing statutes, of Maine, whence our probate law governing partnership estates is said by a learned commentator to have-been borrowed. 1 Woerner, Administration (2 Ed.), p. 297, sec. 129. Yet we do not interpret the Withrow case as .overruling the early rulings followed in Goodson, Admr. v. Goodson, 140 Mo. 206. So, in the exist693 lag condition of onr authorities; we consider our law to authorize a surviving partner to proceed in certain contingencies to wind up the partnership business, without giving bond in the probate court. 2. Mr. Maynard was following the course above mentioned when the plaintiff’s attachment was obtained and levied on the partnership property. The plaintiff in that suit challenges the appointment of the inter-pleader as administrator of the partnership estate as described. Appellant contends that there is no authority of law for the appointment of any one in place of the surviving partner, save the administrator or executor of the individual estate. It appears in evidence that the interpleader is also the administrator of Mr. Stanley’s individual estate, but he did not interplead in that capacity. The only other parties shown by the testimony to have any prior right of administration, renounced. Under section 67 (R. S. 1899) the administration of partnership estates is assimilated to administration in ordinary cases except as provided in the particular enactments concerning those estates. It seems to us that where the surviving partner, and those entitled to administer upon the individual estate of the deceased partner, decline to take charge of the partnership estate, the probate, court may proceed to appoint some other eligible person to discharge the trust, following the analogy furnished by the law of administration in ordinary cases. R. S. 1899, sec. 9. The public administrator has been held a proper person to take charge of such estates in circumstances which would authorize his appointment in the case of an individual estate. Headlee v. Cloud, 51 Mo. 301. If our conclusion touching the appointment was different, it would be necessary then to inquire whether the allegation of disqualification of the interpleader to maintain his claim for the property was not an objection going merely to the want of legal capacity on his [694] part to sue, and whether or not it was waived, under our Missouri statutes and decisions, by failure to present it by demurrer or by plea in the answer of plaintiff to the interplea. R. S. 1899, secs. 598, 602; Fuggle v. Hobbs, 42 Mo. 537; May v. Burk, 80 Mo. 675. But we need not pursue the investigation of this minor issue of pleading, as we are of opinion that the appointment was correct. 3. It is next contended that the attachment effected a lien on the firm property in the hands of the surviving partner and barfed the interpleader from the right to claim that property. By the clear intent of statutory law in Missouri, attachment is not available against property belonging to an estate in process of administration. R. S. 1899, secs. 184, 408, 410, 411. No lien could properly be maintained upon the interest of the partnership by reason of the levy, because that interest was not subject to levy after Mr. Stanley's death. Assuming (without, however, deciding) that the levy was good to reach the interest of the living defendant in the attachment suit (Wiles v. Maddox, 26 Mo. 77), the force of the levy simply attached to that interest to be ascertained upon an adjustment of the partnership accounts. That interest is contingent upon the outcome of the administration and it is to be ascertained upon a final settlement of this particular partnership in the probate court. The existence of this claim against the interest of one of the partners can not justly be viewed as a valid ground to withhold the assets of the firm from the legitimate demands of the co-partnership administration in the probate court. In this respect the case at bar is distinguishable in principle from Rapp v. Vogel, 45 Mo. 524, Lloyd v. Tracey, 53 Mo. App. (St. L.) 175, and kindred decisions, because of the effect of the law of administration upon the relative rights of creditors of a firm and of an individual member thereof. So far as concerns the [695] firm property, the lien of the attachment could not stand. Sweringen v. Eberius, 7 Mo. 421. The exact effect of the levy, however, we are not now called'upon to define further than is involved in the ruling that the interpleader, as administrator of the partnership estate, is entitled to the present possession of the property of the firm, as was held by the learned trial judge. The intervention of the administrator, Mr. LaFont, in the attachment suit, by filing the interplea claiming the attached property, is a statutory proceeding in the nature of an action of replevin. Wheeler Sav. Bank v. Tracey, 141 Mo. 252. The inter-pleader is entitled to recover the property for the purposes of administration of the partnership estate. The judgment is affirmed. Bland, P. J., and Goode, J., concur.